What happens in defamation proceedings: from statement of claim to judgment

Most defamation disputes end without a trial, but every contested one passes through the same stages: pleadings, interlocutory applications, disclosure of documents, mediation, trial and judgment, with an appeal possible after that. Knowing what each stage involves helps both the person who has been defamed and the person accused of defaming them to decide whether litigation is worth it and where the pressure points lie.

This article describes those stages in a state or territory court, with the Federal Court noted where its practice differs. The earlier steps, the concerns notice and offer to make amends, are dealt with in separate articles; outside Western Australia a plaintiff cannot start proceedings until that process has run its course.

Starting the case: the statement of claim

Proceedings begin with an originating document filed in the chosen court, usually a statement of claim, which depending on the court is filed on its own or attached to a claim form. In defamation the statement of claim does three essential things. It identifies the matter complained of, meaning the article, post, broadcast or spoken words, and pleads that the defendant published it to one or more people. It sets out the imputations, which are the defamatory meanings the plaintiff says the ordinary reasonable reader would take from the publication. And, outside Western Australia, it alleges that the publication has caused or is likely to cause serious harm to the plaintiff’s reputation.

The court rules in New South Wales spell this out. A statement of claim must specify each imputation relied on, allege that it was defamatory of the plaintiff and allege serious harm; it must not plead that the publication was false or malicious, and the plaintiff may not rely on two imputations from the same publication unless they differ in substance.¹ Other jurisdictions have similar rules or apply the same approach through case law.

Imputations are the backbone of the case. They are usually framed as short statements such as “the plaintiff is a thief”. The plaintiff must prove each imputation was conveyed and is defamatory, and the defendant pleads defences imputation by imputation. Poorly drafted imputations are the commonest reason a statement of claim is attacked early.

Where a plaintiff has already sued one publisher over a matter, s 23 of the Defamation Act 2005 (NSW) requires the court’s leave before further proceedings are brought against that defendant or an associate over the same or a like publication.²

The defence and reply

The defendant must file a defence within the time fixed by the rules of the court concerned; in the Queensland and New South Wales courts and in the Federal Court the period is 28 days after service of the claim, subject to any extension or different direction.¹⁷ Each defence must be pleaded specifically, and where there are several imputations the defendant must say which imputations each defence answers.³ A defence of justification is sufficiently pleaded by alleging that the imputation was substantially true, but it must be supported by particulars of the facts relied on as making it true.³ Contextual truth, honest opinion, qualified privilege, public interest and the other defences each have their own pleading requirements.

Particulars are the detail behind a pleaded allegation. In a truth defence they are often the most contested part of the case, because they tell the plaintiff exactly what the defendant intends to prove about the plaintiff.

The plaintiff then files a reply. If the plaintiff intends to defeat a defence of qualified privilege or honest opinion by alleging malice, or to rely on any other matter that under the Act defeats a defence, that must be pleaded in the reply.³ In Queensland the rules likewise require a plaintiff who alleges ill will or improper motive to plead in a reply the facts from which it is to be inferred.⁴

Interlocutory applications

Interlocutory applications are disputes decided by the court before trial. Defamation generates more of them than most areas of civil litigation.

Striking out imputations

A defendant may apply to strike out imputations on the ground that the matter complained of is not reasonably capable of conveying them, or that the imputations are not capable of being defamatory, or that they do not differ in substance from one another. Capacity is a question of law for the judge. The High Court in Favell v Queensland Newspapers Pty Ltd endorsed the approach that striking out is a step to be taken with great caution and only where the court has reached a firm conclusion; if reasonable minds might differ about whether the matter is capable of a defamatory meaning, that is a strong, perhaps insuperable, reason for leaving the question to trial.⁵ The Federal Court’s practice note discourages separate capacity hearings altogether and prefers to deal with meaning at trial.⁶

Early determination of serious harm

Since 1 July 2021 serious harm has been an element of the cause of action outside Western Australia, and s 10A(4) and (5) allow the judge to determine it before trial, on application or on the court’s own initiative. If a party applies, the court must decide the question as soon as practicable before trial unless there are special circumstances justifying postponement, such as a need for the evidence to be heard with the trial evidence.⁷ The Act makes serious harm an element of the cause of action and assigns the question to the judicial officer, not a jury.⁷

Early serious harm hearings have become a significant filter. In Newman v Whittington, Sackar J held that s 10A abolished the common law presumption of damage and requires the plaintiff to prove serious harm as a fact in every case, adopting much of the reasoning of the United Kingdom Supreme Court in Lachaux v Independent Print Ltd.⁸ In Zimmerman v Perkiss, a claim over a Facebook Messenger exchange sent to a single recipient, the plaintiff’s new employer, was dismissed after a separate hearing because the recipient’s view of the plaintiff had not been harmed, and the plaintiff’s distress at a false accusation could not be equated with harm to reputation.⁹ The New South Wales Court of Appeal in Rader v Haines explained that the harm to reputation must be more than merely substantial, though it need not be grave, and that even a grave imputation may not cause serious harm where it is published only to a few people who know the plaintiff well and who do not believe it.¹⁰

For plaintiffs the lesson is that evidence of actual reputational consequences, not just of hurt feelings, must be gathered from the outset. For defendants, an early application can end a weak case before the expense of a trial.

Discovery, subpoenas and interrogatories

Discovery (called disclosure in Queensland) requires each party to list and produce documents relevant to the issues. In a truth case it can be extensive. Subpoenas compel third parties, such as platforms, employers or former colleagues, to produce documents or give evidence. Interrogatories are written questions a party must answer on oath, and in defamation they are commonly used to establish the extent of publication, for example how many people read a post and who they were, or to pin down the defendant’s state of mind where malice is in issue. The availability of interrogatories depends on the court’s rules, and leave is often required.

Security for costs and other applications

A defendant who doubts the plaintiff’s ability to pay costs if the claim fails may apply for security for costs, which if ordered requires the plaintiff to pay money into court or provide a guarantee before the case proceeds. The usual grounds, either of which may suffice, are that the plaintiff is a corporation of doubtful means or is ordinarily resident overseas. Other common applications seek the trial of a separate question, amendment of pleadings, dispensing with a jury, or interim injunctions, which in defamation are granted only in very clear cases.

Mediation and offers

Courts in every jurisdiction can refer defamation proceedings to mediation, and most do. The Federal Court’s practice note states that, save in exceptional circumstances, the Court will refer the matter to mediation at an early stage.⁶ Mediation is confidential and without prejudice, and a large proportion of defamation cases settle there or soon afterwards, often on terms that include a published apology or correction as well as money.

The costs provisions of the Defamation Act give both sides a strong reason to make and consider offers. Under s 40, the court may have regard to the way the parties conducted their cases, including any misuse of a superior financial position to hinder early resolution. Unless the interests of justice require otherwise, the court must order indemnity costs where the plaintiff succeeds and the defendant unreasonably failed to make or agree to a settlement offer, or where the plaintiff fails and unreasonably failed to accept a settlement offer made by the defendant.¹¹ A settlement offer for this purpose includes an offer to make amends that was reasonable when made.¹¹ Formal offers under the court rules and Calderbank letters carry their own costs consequences.

The trial

If the case does not settle it proceeds to trial, before a judge alone or, in the jurisdictions that allow it and where a party has elected one, a jury. Where there is a jury it decides whether the defendant published defamatory matter about the plaintiff and whether any defence is established; the judge decides serious harm and damages.¹² The article on juries explains the division in detail.

The plaintiff goes first and must prove publication, identification, that the imputations were conveyed and are defamatory, and serious harm. Evidence about the extent of publication (circulation figures, page views, follower counts) and about the consequences for the plaintiff (lost work, changed treatment by others, the “grapevine effect” by which allegations spread) is central. Witnesses give their main evidence orally or by affidavit depending on the court’s rules; in the Federal Court evidence in chief is ordinarily led orally.⁶ Each witness is then cross examined by the other side.

The defendant then calls its evidence. In a truth case this can mean calling the sources of the story and the people who witnessed the events alleged, which is where defamation trials become long and expensive. Expert evidence is comparatively rare in defamation, although it appears in cases where the truth of a technical allegation is in issue or where damages for economic loss must be quantified.

After the evidence, counsel make closing submissions. In a jury trial the judge sums up and the jury retires to answer written questions. In a judge alone trial the judge reserves judgment, often for several months.

Judgment, remedies and costs

A successful plaintiff is awarded damages. Damages for hurt feelings and injury to reputation, which the Act calls damages for non economic loss, are capped at $520,000 from 1 July 2026. Aggravated damages, where warranted, are assessed separately and are not subject to that cap.¹³ Economic loss such as lost income is uncapped but must be proved. Exemplary or punitive damages cannot be awarded.¹⁴ The court may also grant a permanent injunction restraining repetition of the defamatory imputations, as occurred in Martin v Najem alongside an award of $300,000 including aggravated damages for two Instagram videos.¹⁵

Costs normally follow the event, meaning the loser pays the winner’s legal costs assessed on the ordinary basis. In practice this recovers only part of what was actually spent, and the proportion varies from case to case. Section 40 can increase that to indemnity costs where settlement offers were unreasonably refused.¹¹ A defendant who wins may recover costs from the plaintiff on the same principles.

Appeals

A party dissatisfied with the judgment may appeal to the relevant Court of Appeal or, from a Federal Court judge, to the Full Court. Time limits are short: in Queensland a notice of appeal must be filed within 28 days after the decision unless the Court of Appeal orders otherwise, and other jurisdictions apply similar periods.¹⁶ Appeals from a judge’s findings of fact are difficult, and appeals from a jury verdict are harder still because the jury gives no reasons. Leave is required for appeals from many interlocutory decisions.

Timeframes and cost

Timeframes vary with the court, the list and the issues. As a rough guide only, a straightforward case may reach trial within 12 to 18 months of filing, while cases involving a truth defence, multiple publications or a jury often take two years or more, and an appeal adds further time. The limitation period is one year from publication, extendable to a maximum of three years in limited circumstances; time runs from the date of publication, not from the date the plaintiff first seeks advice.

The financial cost of a contested trial in a superior court is commonly measured in hundreds of thousands of dollars per side, and the emotional cost is real for both parties: the plaintiff is cross examined on their reputation and the defendant on their honesty. Litigants who represent themselves face particular difficulty because defamation pleading is technical and the rules about imputations, particulars and replies are strictly applied.

Differences between jurisdictions

In Western Australia there is no serious harm element, no early serious harm determination and no mandatory concerns notice, so a WA statement of claim is pleaded on the pre 2021 basis. The Federal Court has no juries in practice and follows its own Defamation Practice Note, which fixes an early first case management hearing, requires a defence within 28 days and refers most cases to mediation.⁶ Court rules on pleadings, discovery, interrogatories and appeal periods differ in detail between the states and territories and should be checked for the court concerned.

Getting advice

The stage a dispute has reached, the court it is in and the time since publication all affect what can usefully be done. Early advice, before pleadings are filed or a defence is due, usually costs less than correcting a procedural misstep later.